SENTER v. COMMUNITY HOSPITAL

Filing 35

ENTRY granting Defendant's 14 Motion to Dismiss with PREJUDICE as to Plaintiffs ADA and Title VII claims, and GRANTED without PREJUDICE as to Plaintiffs Section 1981 claim. Signed by Judge Richard L. Young on 9/30/2010. (PG)

U N I T E D STATES DISTRICT COURT S O U T H ER N DISTRICT OF INDIANA I N D IA N A P O L IS DIVISION

F R A N K L I N SENTER, P l a i n ti f f ,

) ) ) vs. ) ) V E O L I A WATER INDIANAPOLIS, LLC, ) De fend ant. )

1:09-cv-1100-RLY-DML

E N T R Y ON DEFENDANT'S MOTION TO DISMISS O n October 10, 2009, Franklin Senter ("Plaintiff") filed an Amended Complaint a g a i n s t Veolia Water Indianapolis, LLC ("Defendant") alleging violations arising under t h e Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., Title VII of the C i v i l Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and racial d i s c ri m i n a ti o n under 42 U.S.C. § 1981 ("Section 1981"). On January 14, 2010, D e f e n d a n t filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for f ai lu re to state a claim upon which relief can be granted. For the reasons set forth below, D e f e n d a n t ' s motion is GRANTED with PREJUDICE as to Plaintiff's ADA and Title V I I claims, and GRANTED without PREJUDICE as to Plaintiff's Section 1981 claim. I. Background O n September 4, 2009, Plaintiff filed an employment discrimination suit against C o m m u n i t y Hospital, alleging violations arising under the ADA, Title VII, and Section

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1 9 8 1 . On October 1, 2009, prior to the filing of any responsive pleadings, Plaintiff filed an Amended Complaint, replacing Defendant's name with that of Community Hospital. Plaintiff alleges that the error in the original Complaint was due to Plaintiff's counsel's u s e of a pleading form, in which counsel failed to change the name of the defendant from C o m m u n i t y Hospital to Defendant. (Plaintiff's Response at 1). Plaintiff filed the A m e n d e d Complaint without seeking leave of court. On November 10, 2009, Defendant w a s served with the Amended Complaint. (Plaintiff's Ex. A, Affidavit of Gregory A. Sto we rs ("Stowers Aff.") ¶ 9). II. M o t i o n to Dismiss Standard Ru le 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal of a claim f o r "failure to state a claim upon which relief may be granted." See FED. R. CIV. P 1 2 ( b ) ( 6 ). The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal suf ficie ncy of the complaint, not the merits of the lawsuit. Szabo v. Bridgeport Machines, I n c ., 249 F.3d 672, 675-76 (7th Cir. 2001). The court must treat the factual allegations in the complaint as true, construe the allegations liberally, and draw all reasonable infe ren ces in the plaintiff's favor. See Brown v. Budz, 398 F.3d 904, 908 (7th Cir. 2005). A complaint need not make detailed factual allegations to survive a Rule 12(b)(6) motion t o dismiss, but it must contain more than labels and conclusions or a formalistic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 ( 2 0 0 7 ) . "Factual allegations" in the complaint "must be enough to raise a right to relief

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a b o v e the speculative level . . . ." Id (internal citations omitted). III. D i s c u s s io n R u l e 15(a) of the Federal Rules of Civil Procedure provides that "a party may a m e n d its pleading once as a matter of course before being served with a responsive p l e a d in g . . . ." FED. R. CIV. P. 15(a)(1)(A).1 However, if a plaintiff adds additional def end ants , he is required to seek leave of court before filing an amended complaint. See M o o r e v. State of Ind., 999 F.2d 1125, 1128 (7th Cir. 1993) ("Although Rule 15(a) g e n e r a ll y permits the plaintiff to amend his complaint once as a matter of course before a r e s p o n s iv e pleading is served, here, the plaintiff's requested amendment required leave f r o m the court because it sought to assert claims against additional defendants.") (citing W i l l ia m s v. U.S. Postal Serv., 873 F.2d 1069, 1072 n.2 (7th Cir. 1989)). Here, Plaintiff utilized a pleading form to draft his Complaint, but in cutting and p a s t in g , failed to omit Community Hospital's name for Defendant's name. Plaintiff attem pted to amend his Complaint by substituting Defendant for Community Hospital. However, Plaintiff did not seek leave of court before filing his Amended Complaint. Recognizing this error, Plaintiff seeks leave in his response brief by stating: "[i]f . . . the [c]ou rt holds that a party cannot be added as a matter of course, then Plaintiff respectfully r e q u e s ts the [c]ourt order that Plaintiff's [C]omplaint be amended by his [A]mended

The court notes that Federal Rule of Civil Procedure 15(a) was amended on December 1, 2009. As the instant motion to dismiss was filed before the amendment took effect, the court uses language contained in the pre-amended rule. 3

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[C] om plaint . . . ." (Plaintiff's Response at 5). This passing statement is insufficient to qua lify as a proper motion for leave. Moreover, were the court to grant leave permitting Plaintiff to file the Amended Com plaint, the amendment would be futile with respect to Plaintiff's ADA and Title VII claim s. See Moore, 999 F.2d at 1128 (denying leave to amend due to futility because " e a c h of the claims for damages contained in the proposed amended complaint could not w i t h s ta n d a motion to dismiss . . . for failure to state a claim upon which relief can be gran ted."). Under the ADA and Title VII, Plaintiff must have filed his Complaint within 9 0 days of receiving notice of the right to sue from the EEOC.2 42 U.S.C. § 2000e5(f)(1 ); Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 600 (7th Cir. 2009) (citations om itted); Prince v. Stewart, 580 F.3d 571, 574 (7th Cir. 2009). Since the Amended C o m pl ai nt was filed after the 90-day limitation period for bringing claims under the ADA and Title VII, those claims are time-barred, and would not withstand a motion to dismiss. Accordingly, Defendant's motion is GRANTED with PREJUDICE with respect to the claim s arising under the ADA and Title VII. Defendant's motion is GRANTED without PR EJU DIC E with respect to Plaintiff's Section 1981 claim because that claim is still v i a b l e.3

Plaintiff's Section 1981 claims are not at issue in this motion because those claims are governed by a two-year Statute of Limitations. See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 735-36 (7th Cir. 2006). Not having accepted Plaintiff's Amended Complaint, the court need not address the arguments raised involving "relation back" under Federal Rule of Civil Procedure 15(c). 4
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IV.

Conclusion Bas ed on the forgoing reasons, Defendant's Motion to Dismiss (Docket # 14) is

G R A N T E D with PREJUDICE as to Plaintiff's ADA and Title VII claims, and G R A N T E D without PREJUDICE as to Plaintiff's Section 1981 claim.

SO ORDERED this 30 th day of September 2010.
__________________________________ RICHARD L. YOUNG, CHIEF JUDGE United States District Court Southern District of Indiana

E l e c t ro n i c Copies To:

C h a r l e s B. Baldwin OGLETREE, DEAKINS, NASH, SMOAK & STEWART c h a r l es . b a ld w i n @ o d n s s . c o m Brett Edward Buhl OGLETREE, DEAKINS, NASH, SMOAK & STEWART b r e t t. b u h l @ o d n s s .c o m G r e g o r y A. Stowers STOWERS & WEDDLE PC g s to w e rs @ s w h- la w .c o m

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